Filed 12/27/18; Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JASON OLIVE,

Plaintiff and Appellant,

v.

GENERAL NUTRITION CENTERS,

INC.,

Defendant and Appellant.

B279490

(Los Angeles County

Super. Ct. No. BC482686)

APPEAL from a judgment and order of the Superior Court

of Los Angeles County, John Shepard Wiley, Jr., Judge.

Affirmed.

Johnson & Johnson, Neville L. Johnson, Douglas L.

Johnson and Ronald P. Funnell; Hamideh Firm and Bassil A.

Hamideh for Plaintiff and Appellant.

McGuire Woods, Leslie M. Werlin, James F. Neale and

Molly M. White for Defendant and Appellant.

_____________________

2

Jason Olive is a model and actor who contracted with

General Nutrition Centers, Inc. (GNC) to use his likeness in its

advertising campaign. GNC continued using Olive’s likeness in

its advertising after its right to do so expired. GNC admitted

liability for the unauthorized use of Olive’s likeness in violation of

Civil Code section 33441 but contested the amount of damages. A

jury found Olive suffered $213,000 in actual damages and

$910,000 in emotional distress damages. The trial court denied

both parties’ motions for prevailing party attorney fees and costs.

Both Olive and GNC separately appeal from the judgment

and the order denying prevailing party attorney fees. Olive

contends the court erred by (1) failing to provide his proposed

special jury instruction concerning the burden of proof under

section 3344, (2) excluding his expert witnesses who would have

testified about the amount of GNC’s profits from the

unauthorized use of his likeness, and (3) determining he was not

the prevailing party for purposes of awarding statutory attorney

fees. In its cross-appeal, GNC contends it should have been

deemed to be the prevailing party.2 We affirm both the judgment

and the order denying attorney fees.

1 The statute prohibits the knowing use of another person’s

likeness in any manner, including for the purposes of advertising,

without such person’s consent. (Civ. Code, § 3344, subd. (a).)

All undesignated section references are to the Civil Code.

2 In its opening brief, GNC additionally claimed the trial

court erred by denying its motion for judgment notwithstanding

the verdict. GNC abandoned this claim in its reply brief, and we

therefore do not address it.

3

FACTUAL AND PROCEDURAL SUMMARY

Olive’s Background

Olive is a model, former professional volleyball player, and

actor. His previous modeling engagements included campaigns

for Ralph Lauren, Levi’s, Versace, Armani, Calvin Klein, Elle

Magazine, and GQ Magazine. Olive reached the peak of his

modeling career in the mid-1990’s, when he was in his twenties.

He earned up to $25,000 per day for modeling work during the

height of his career.

Olive’s modeling career has waned since that time, and he

turned to acting around 2010. He was featured in Tyler Perry’s

hit television show “For Better or Worse” in 2011.

GNC’s New Marketing Campaign

GNC is an international retailer and manufacturer of

vitamins and other nutritional supplements, with approximately

8,000 retail locations. GNC has used the “Live Well” marketing

tagline in its advertising and marketing materials since

approximately 1998. The slogan is meant to encourage

customers “to live a better life.”

In 2010, GNC hired photographer Peter Arnell to carry out

a photo shoot for its new “Live Well” advertising campaign. GNC

was looking for models who were athletic, healthy, ethnically

diverse, and “everyday relatable people.” GNC gave Arnell a

budget but otherwise had no direct role in the photo shoot,

including casting and securing proper release agreements.

4

Olive is Cast as a Model for GNC’s “Live Well” Campaign

Olive’s agent, Richard Ferrari, submitted him as a

candidate for GNC’s “Live Well” campaign. Compensation for the

photo shoot was posted at $6,000 but Ferrari sought a higher

rate. Arnell had a limited budget and refused to negotiate for a

higher fee. Olive and approximately 15 other models were cast

for the photo shoot.

Olive executed a “Photograph and Likeness Release” on

September 24, 2010. The agreement irrevocably granted GNC

the “absolute right, permission, authorization and consent to use,

reuse, produce, reproduce, exploit, publish, republish, display and

otherwise use and reuse [his] image and likeness and photograph

to be taken at the photoshoot scheduled for September 24, 2010.”

Olive was paid $4,000 for the three-hour photoshoot, in addition

to an $800 agent fee. The release lasted for one year from GNC’s

first usage in print media, and GNC had the unilateral right to a

one-year renewal in exchange for the same amount of

compensation.

In November 2010, Olive executed a second “Photograph

and Likeness Release” allowing GNC to use his image and

likeness on print media displayed on any company trucks and

other vehicles in North America. Olive was paid $8,000 for this

agreement, which is valid through December 31, 2021.

GNC’s marketing team approved Arnell’s selections. GNC

launched its new advertising campaign in January 2011. Olive’s

image was used in outdoor billboards, bus shelters, kiosks, social

media websites, direct mail advertising, as well as in-store

posters and signage. Olive was “shocked” and “angered” when he

discovered the vast scope of the advertising campaign. Olive

believed he agreed to “a very small job” in light of what he

5

perceived to be a small fee, and he felt he was doing a favor for

the Arnell Agency.

In May 2011, GNC decided to pursue a new photo shoot in

an effort to update its promotional graphics. GNC wanted its

new approach to resonate with updates to its stores. None of the

models from the September photo shoot, including Olive, were

invited to the new shoot.

GNC terminated its relationship with the Arnell Agency

after Arnell’s principals divorced. GNC expected the agency

would continue managing the models it used and maintain any

outstanding release agreements. GNC did not immediately hire

a replacement advertising agency, and no one was tasked with

keeping track of model release agreements.

GNC’s Right to Use Olive’s Likeness Expires

GNC declined to renew the release agreement, and Olive

told Ferrari he wanted to end his relationship with GNC. On

January 9, 2012, Ferrari emailed GNC to confirm it

was no longer authorized to continue using Olive’s image.3 He

never received a response. Olive eventually fired Ferrari.

Celina Petronzi, an employee in GNC’s marketing

department, was tasked with responding to Ferrari’s inquiry, but

she failed to do so. Petronzi emailed GNC’s Vice President of

marketing, informing her that some talent from the September

2010 Arnell photo shoot was going to expire, and asking about

3 It is unclear exactly when the release term expired. Olive

contends the term expired at the end of November 2011, whereas

GNC contends it expired “at the end of 2011.” Nevertheless, it is

undisputed that GNC’s right to use Olive’s likeness expired

sometime in late 2011 or early 2012.

6

what imagery would be used going forward. The marketing

department was unaware that the releases had expired and was

not familiar with Olive.

After discovering the oversight, GNC negotiated extensions

for every model used in the September 2010 shoot, except Olive.

The company was prepared to replace the images of any model

who “was difficult” during negotiation. GNC paid between $7,500

and $32,000 to the models in exchange for five-year extensions.

GNC retained a new advertising agency in April 2012.

GNC continued its efforts to negotiate a release extension

with Olive, but he refused and instead filed suit. Later in 2012,

GNC attempted a last ditch effort to negotiate an extension with

Olive for $150,000. Olive rejected the offer. GNC removed

Olive’s image from its marketing materials in either November or

December of 2012, incurring approximately $350,000 in take-

down expenses.

Olive’s Complaint and GNC’s Answer

Olive’s complaint alleged causes of action for common law

misappropriation of likeness and statutory misappropriation of

likeness (§ 3344). He also sought restitution for unjust

enrichment. Pursuant to section 3344, subdivision (a), Olive

requested disgorgement of any profits from GNC’s unauthorized

use of his image. GNC initially denied Olive’s allegations, but it

admitted liability for the unauthorized use of Olive’s image prior

to trial.

GNC’s Motions In Limine

Olive designated three experts to offer their opinions

regarding GNC’s profits attributable to its unauthorized use of

7

his image: (1) Weston Anson; (2) Leonard Lyons; and (3) Jeff

Anderson. GNC moved in limine to exclude Anson and Lyons

from testifying at trial.4

GNC sought to exclude Anson from opining as to Olive’s

damages and the apportionment of GNC’s profits to its use of his

image. The company argued Anson’s opinions were speculative

and unreliable. GNC also sought to exclude Lyons because his

opinion was based on Anson’s speculative and flawed analysis.

Following a hearing, the trial court granted GNC’s in limine

motions to exclude Anson and Lyons.

Jury Verdict and Judgment

The jury ultimately awarded Olive a total of $1,123,000 in

damages, consisting of $213,000 in actual damages and $910,000

in emotional distress damages. The jury found that Olive failed

to prove any of GNC’s profits were attributable to the

unauthorized use of his image, and that GNC had not acted with

malice or fraud. The trial court separately returned a defense

verdict on Olive’s equitable claim for unjust enrichment. The

court denied GNC’s motion for a new trial and for judgment

notwithstanding the verdict on the jury’s emotional distress

damages verdict.

4 Anderson is the Director of Valuation and Analytics at

Anson’s firm. GNC did not move to exclude Anderson as an

expert. Olive contended at oral argument that he did not call

Anderson as a witness because he had only generated data used

by Anson.

8

Motion for Attorney Fees and Costs

Both parties moved for statutory prevailing party costs and

attorney’s fees pursuant to section 3344, subdivision (a). The

trial court noted that both parties were visibly disappointed after

the jury rendered its verdict. It found there was no prevailing

party because “the jury accepted neither side’s recommendation

but instead awarded a middling sum amounting to a tie.”

DISCUSSION

A. The Trial Court Correctly Rejected Olive’s Proposed Special

Jury Instruction

Olive contends the trial court erred by rejecting his

proposed special jury instruction regarding the burden to

apportion GNC’s profits associated with the unauthorized use of

his likeness. We disagree.

1. Law Governing Jury Instructions and

Standard of Review

A party in a civil case is, upon request, entitled to correct

jury instructions on every theory of the case that is supported by

substantial evidence. (Eng v. Brown (2018) 21 Cal.App.5th 675,

704.) “It is elementary that a court may refuse a party’s request

for a jury instruction that misstates the law. ‘A trial court has no

duty to modify or edit an instruction offered by either side in a

civil case. If the instruction is incomplete or erroneous the trial

judge may, as he did here, properly refuse it.’ [Citations.]” (Ibid;

accord, Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th

655, 685.)

9

An instruction that clarifies the application of statutory

language may not add to the words of a statute. (Torres v.

Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003–1004.)

We review the legal adequacy of jury instructions under the de

novo standard of review. (Eng v. Brown, supra, 21 Cal.App.5th at

p. 704.)

2. Section 3344 and CACI No. 1821

In any action brought under section 3344, the injured party

is entitled to collect any profits that are attributable to the

defendant’s unauthorized use of his or her likeness. (§ 3344,

subd. (a).) “In establishing such profits, the injured party or

parties are required to present proof only of the gross revenue

attributable to such use, and the person who violated this section

is required to prove his or her deductible expenses.” (Ibid.)

CACI No. 1821 is the standard instruction for the jury to

determine damages arising from a statutory misappropriation of

likeness claim under section 3344. Pertinent here, the

instruction provides:

“In addition, [name of plaintiff] may recover any profits

that [name of defendant] received from the use of [name of

plaintiff]’s [name/voice/signature/photograph/likeness] [that have

not already been taken into account with regard to the above

damages]. To establish the amount of these profits you must:

1. Determine the gross, or total, revenue that [name of

defendant] received from the use;

2. Determine the expenses that [name of defendant] had in

obtaining the gross revenue; and

3. Deduct [name of defendant]’s expenses from the gross

revenue.

10

[Name of plaintiff] must prove the amount of gross revenue, and

[name of defendant] must prove the amount of expenses.” (CACI

No. 1821.)

3. Olive’s Proposed Special Instruction

Olive initially requested the trial court include CACI No.

1821 in his proposed instructions. He correctly proposed that

“Jason Olive must prove the amount of gross revenue, and GNC

must prove the amount of expenses.” Olive later moved to amend

the instruction to additionally require GNC to prove “the portion

of revenue that is attributable to factors other than the use of

[Olive’s likeness]” after the trial court granted GNC’s in limine

motions to exclude Anson and Lyons. Olive argued that without

his proposed supplemental language, the jury would be confused

about the burden to apportion profits and would misapply the

law.

Following a hearing, the trial court denied Olive’s motion.

The court determined that section 3344 unequivocally placed the

burden on Olive to present proof of GNC’s gross revenue

attributable to its use of his likeness. The court also rejected

Olive’s reliance on federal copyright law.

4. CACI No. 1821 Tracks the Language of Section 3344

Olive contends the court erred because CACI No. 1821 did

not adequately explain the parties’ respective burdens of proof

under section 3344, thus necessitating a further instruction

guiding the jury on how to arrive at damages for GNC’s profits

attributable to the infringement. He is incorrect.

The statutory language of section 3344 is unambiguous—

the plaintiff bears the burden of presenting proof of the gross

11

revenue attributable to defendant’s unauthorized use of the

plaintiff’s likeness, and the defendant must then prove its

deductible expenses. (§ 3344, subd. (a).) CACI No. 1821 mirrors

the language of section 3344: “[plaintiff] must prove the amount

of gross revenue, and [. . . defendant] must prove the amount of

expenses.” (CACI No. 1821.)

The special instruction proposed by Olive flips that

statutory language on its head. Under that instruction, GNC

would have to prove the amount of its gross revenue not

attributable to its use of Olive’s likeness, a figure that could not

be calculated without first determining the company’s total gross

revenue. The remaining figure, of course, would be GNC’s

calculation of the amount of gross revenue that was attributable

to its use of Olive’s likeness. Not only is this directly contrary to

the unambiguous statutory command that Olive had to prove the

amount of revenue attributable to GNC’s use of his likeness, it

would create the absurd result of effectively placing on each party

the burden to prove the same disputed fact.

Therefore, contrary to Olive’s contention, CACI No. 1821

adequately explained the applicable law to the jury. It is

elementary that a court may refuse a proposed instruction that

incorrectly states the law. (Eng v. Brown, supra, 21 Cal.App.5th

at p. 704; Bullock v. Philip Morris USA, Inc., supra, 159

Cal.App.4th at pp. 684–685.) Moreover, a court may properly

refuse a proposed instruction if other instructions given

adequately cover the law. (Bullock, at p. 685; Arato v. Avedon

(1993) 5 Cal.4th 1172, 1189, fn. 11.) The court was correct in

rejecting Olive’s proposed supplemental instruction as

unnecessary and misleading.

12

Olive also supports his claim of instructional error by

citations to federal copyright, patent and trademark law, pointing

to the legislative history of section 3344, which he contends

states: “The rationale for the right of publicity, namely the

encouragement of personal achievement for the ultimate benefit

of society, is closely analogous to the rationale for copyright

protection under the U.S. Constitution.”

We reject this comparison. First, Olive appears to cite to

nothing more than the bill number of a 1984 amendment to the

statute, and has not provided us with either a proper legislative

history citation to the material he asks us to consider or a copy of

the relevant document.

Second, as previously discussed, the language of section

3344 is clear and unambiguous. “[W]hen the words of a statute

are unambiguous, we need not turn to any extrinsic sources.

[Citation.]” (City of Montclair v. Cohen (2018) 20 Cal.App.5th

238, 250.) “In such a case, there is nothing for the court to

interpret or construe. [Citation.]” (MacIsaac v. Waste

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th

1076, 1082.) State courts of appeal will resort to federal law for

guidance only in the absence of relevant state precedent.

(Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806,

814.)

Section 3344 could not be clearer as to which party bears

the burden to prove GNC’s profits attributable to the

unauthorized use of Olive’s image. Accordingly, we need not turn

to any extrinsic sources on this point.5 As a result, we follow

5 In arguing that he was prejudiced by the allegedly

erroneous jury instruction, Olive relies on two questions from the

jury. First, the jury asked the court “what are the guidelines for

13

theplain meaning of the statute without resorting to its

legislative history. (N.S. v. D.M. (2018) 21 Cal.App.5th 1040,

1047.)

Third, even if the Legislature believed that the rationale

supporting the right of publicity was analogous to the rationale

for copyright protection, it was still free to enact a law that

deviated from its federal counterpart. “Our role in construing a

statute is simply to ascertain and to declare what is in terms or

in substance contained in the statute, not to insert what has been

omitted.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 270,

citing Code. Civ. Proc., § 1858.)6

determining profit damages and the amount[?]” The court

responded by circling the word “profits”. Second, the jury

indicated it “has concerns about the profit that GNC made, and

that we cannot figure out the formula for an amount even though

we agree that GNC made money off of his image, could someone

help us through the problem?” In response, the court reopened

closing argument, allowing each party to argue for an additional

five minutes. Having concluded there was no instructional error,

we need not address Olive’s argument regarding prejudice. (E.g.,

Center for Biological Diversity v. County of San Bernardino

(2016) 247 Cal.App.4th 326, 332.)

6 Olive also repeatedly cites Christoff v. Nestle USA, Inc.

(2007) 152 Cal.App.4th 1439 for this proposition, even after

acknowledging that it was superseded by the Supreme Court’s

grant of review and subsequent reversal on other grounds in

Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468. California

Rules of Court, rule 8.1115 prohibits the citation of unpublished

California state opinions, with certain limited exceptions

inapplicable here. (Cal. Rules of Court, rule 8.1115(a); People v.

Gray (2014) 229 Cal.App.4th 285, 292, fn. 15 [improper to cite or

rely upon an unpublished opinion].)

14

Finally, Olive contends that CACI No. 1821 did not give the

jury adequate guidance as to the meaning of the term

“attributable to” when determining the amount of gross revenues

derived from GNC’s use of Olive’s likeness. The term

“attributable” means “capable of being attributed.” (Webster’s

Third New Internat. Dict. (1993) p. 141, col. 3.) When used as a

verb, “attribute” simply means “explained as caused or brought

about by; regard as occurring in consequence of or on account of .

. . .” (Id., p. 142, col. 1.) In short, when something is attributable

to an act, it is caused by or results from that act, a common

definition that squares with the language of section 3344. We

therefore see no error in that regard either.

B. Exclusion of Olive’s Expert Witnesses

Olive contends the court erred in two respects when it

excluded Anson and Lyons from testifying as experts at trial.

First, the exclusion of these experts hinged on a misapplication of

section 3344, requiring that he prove GNC’s profits from the

unauthorized use of his image. Having already concluded the

trial court did not misinterpret the burden of proof set forth in

section 3344, we will not revisit this claim. Second, Olive asserts

the exclusion of Olive’s proposed expert witnesses was an abuse

of the court’s discretion.

1. Applicable Law and Standard of Review

In the context of admitting expert testimony, our Supreme

Court has explained that trial courts “have a substantial

‘gatekeeping’ responsibility.” (Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 769

(Sargon).) That is, “under Evidence Code sections 801,

15

subdivision (b), and 802, the trial court acts as a gatekeeper to

exclude expert opinion testimony that is (1) based on matter of a

type on which an expert may not reasonably rely, (2) based on

reasons unsupported by the material on which the expert relies,

or 3) speculative.” (Id. at pp. 771–772; accord, Cooper v. Takeda

Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577

(Cooper).)

“‘“[E]ven when the witness qualifies as an expert, he or she

does not possess a carte blanche to express any opinion within

the area of expertise. [Citation.] For example, an expert’s

opinion based on assumptions of fact without evidentiary support

. . . or on speculative or conjectural factors . . . has no evidentiary

value . . . and may be excluded from evidence. [Citations.]”

[Citations.]’” (Cooper, supra, 239 Cal.App.4th at p. 577.) The

court’s gatekeeper function allows it to conclude there is simply

too great an analytical gap between an expert’s data and the

opinion proffered, and thus exclude it as speculative or

irrelevant. (Sargon, supra, 55 Cal.4th at p. 771; David v.

Hernandez (2017) 13 Cal.App.5th 692, 698.)

However, “[t]he court must not weigh an opinion’s

probative value or substitute its own opinion for the expert’s

opinion. Rather, the court must simply determine whether the

matter relied on can provide a reasonable basis for the opinion or

whether that opinion is based on a leap of logic or conjecture.”

(Sargon, supra, 55 Cal.4th at p. 772.)

A ruling will be deemed an abuse of discretion only if it is

“‘so irrational or arbitrary that no reasonable person could agree

with it.’ [Citation.] But the court’s discretion is not unlimited,

especially when, as here, its exercise implicates a party’s ability

to present its case. Rather, it must be exercised within the

16

confines of the applicable legal principles.” (Sargon, supra, 55

Cal.4th at p. 773.)

In Sargon, supra, 55 Cal.4th 747, a small dental implant

company that had net profits of more than $100,000 in 1998 sued

the University of Southern California for breach of contract after

the university failed to present proper reports as its contract

required. (Id. at p. 754.) The company sought damages for lost

profits ranging from $200 million to more than $1 billion. (Id. at

pp. 753, 755.) Following an evidentiary hearing, the trial court

excluded as speculative the proffered testimony of an expert who

would have opined that but for the university’s breach of

contract, the company would have become a worldwide leader in

the dental implant industry. (Id. at p. 753.)

The Court of Appeal reversed, concluding that the trial

court erred in excluding the expert’s testimony, but the Supreme

Court reversed the judgment of the Court of Appeal. (Sargon,

supra, 55 Cal.4th at p. 753.) Our high court held that trial courts

have the duty to act as a “gatekeeper” to exclude speculative

expert testimony. (Ibid.) Although lost profits need not be

proven with mathematical precision, they must also not be

unduly speculative; thus, the trial court acted within its

discretion when it excluded the expert’s opinion that the company

would have become extraordinarily successful had the university

completed the clinical testing. (Ibid.) The expert’s opinion was

unreliable because he did not base his lost profit estimates on a

market share ever achieved by the company. (Id. at p. 776.)

2. Proceedings Below

Olive intended to offer Anson as an expert to opine about

his actual damages and the apportionment of GNC’s profits

17

attributable to its unauthorized use of his likeness. Olive

designated Lyons as an expert regarding (1) the calculation of

GNC’s revenues, expenses and profits, (2) to conduct an

apportionment analysis, and (3) to testify about the indicia of

fraud or intentional misconduct by GNC.

GNC moved for an order in limine to preclude Anson from

testifying, arguing his opinions were speculative, and lacked

foundation and an objective methodology. GNC moved to exclude

Lyons’ testimony on the ground that it relied on Anson’s flawed

and speculative analysis, and that his opinion relating to GNC’s

indicia of fraud or intentional misconduct invaded the province of

the jury.

The court determined that both Anson and Lyons utilized a

“nearly data free and methodologically primitive” analysis. The

court said that their methodologies contained no science or data,

and instead simply relied on mere wishful thinking. The court

granted the motions to exclude both witnesses.

Olive requested reconsideration of the motion in limine

rulings. The court denied the motion. Olive then filed a petition

for writ of mandate challenging the trial court’s ruling. This

court summarily denied the petition.

3. Anson’s Testimony Was Properly Excluded

GNC’s revenue in 2012 was approximately $2.4 billion.

Pertinent here, Anson opined that one to three percent of GNC’s

revenue was attributable to the unauthorized use of Olive’s

likeness.7 Anson’s opinion was based on (1) an analysis of

7 Anson also concluded that Olive’s actual damages for

GNC’s use of his likeness were between $500,000 and $1 million

for 2012, and $1 million for 2013 based on (1) Olive’s statement

18

purportedly comparable samples of comprehensive royalty

agreements with various well-known celebrities, (2) the CEO’s

statement that in-store merchandising impacts the company’s

sales by zero to one percent, and (3) GNC’s increase in revenue

during the subject period of time. We agree with the trial court

that his methodology was flawed in several aspects.

First, Anson based his opinion on a comparison of royalty

agreements with various celebrities, athletes, and other persons

of international prominence. These included Joe Namath, George

Foreman, Kathy Ireland, Paris Hilton, Barry Bonds, Michael

Jordan, Evander Holyfield, Tim Duncan, John Elway, Alex

Rodriguez and Tyra Banks.8 Intending no disrespect to Olive,

nothing in the appellate record indicates that he shared

anywhere near the same degree of celebrity as those included in

Anson’s sample.

In any event, Anson’s methodology was also unsound

because it compared the limited use of Olive’s image from one

photo shoot to comprehensive royalty agreements that included

the licensors’ name, signature, voice, initials, endorsement, and

copyrights. Anson believed that GNC’s sales increase was

“driven by the face of the brand and a spokesperson [Olive] that’s

finally resonated with everyone.” The fatal flaw in Anson’s

that he would not have accepted any less compensation, (2)

Ferrari’s testimony that Olive’s minimum acceptable fee would

have been in the “high six figures,” and (3) the earnings of top

male models published in a Forbes magazine article. Olive does

not challenge the exclusion of Anson on this basis.

8 The median compensation for an endorsement was five

percent, but Anson believed one to three percent would be a more

conservative figure as applied to Olive.

19

analysis is that, unlike the licensors in his sample, Olive was not

the company spokesperson, and the use of images taken from a

photo shoot with 15 other models is in no way analogous to a

comprehensive celebrity endorsement arrangement. An expert

may not base his or her opinion upon a comparison of matters

that are not reasonably comparable. (See Sargon, supra, 55

Cal.4th at pp. 770; see also Roscoe Moss Co. v. Jenkins (1942) 55

Cal.App.2d 369.)

Second, Anson’s analysis mischaracterized a statement

from GNC’s President and CEO, Joe Fortunato. In his

deposition, Fortunato was asked what percentage in-store

marketing contributes to company sales. He answered “it has the

least amount of value of anything I’ve told you in regards to

whether a consumer buys a product.” When asked to give a

percentage, Fortunato responded: “I can put it at anywhere from

zero to slightly more than zero. Very little. [¶] . . . [¶] I’ll go zero

to one.”

Anson cited this testimony to support his conclusion that at

least one percent of GNC’s revenues came from its unauthorized

use of Olive’s image. Olive asserts in his opening brief that

“Fortunato admitted that the Live Well marketing campaign

drove 1 percent of GNC’s revenue.” Fortunato’s testimony did not

apportion between the Live Well campaign and any other forms

of in-store marketing. Neither did he attribute any portion of his

estimate to Olive alone, as opposed to the other models used in

that campaign. In short, he made no such admission. Anson’s

reliance on Fortunato’s out-of-context statement further

diminished the reliability of his analysis.

Third, Anson found a causal connection between GNC’s

annual growth rate and its unauthorized use of Olive’s image

20

without identifying any reliable evidence linking the two, such as

data from a focus group. Anson’s analysis did not consider the

macroeconomic conditions during the relevant period of time,

GNC’s pricing promotions, general sales in the vitamin and

supplement industry, employee sales promotions, GNC’s other

marketing efforts, and the impact of professional athletic

“ambassadors” used by GNC. Anson’s conclusory analysis was

therefore unduly speculative.

In sum, Anson’s opinion hinged on hypothetical conjecture

about GNC’s profits attributable to Olive’s image and would not

have reasonably assisted the jury in evaluating the issue.

(Sargon, supra, 55 Cal.4th at pp. 770, 777.) We agree with the

trial court’s conclusion that there was simply too great an

analytical gap between the supposed data relied on by Anson and

the opinion proffered. (See id. at p. 771 [court may conclude

there is too great an analytical gap between the data and the

opinion proffered]; see also David v. Hernandez, supra, 13

Cal.App.5th at p. 698 [same].) Thus, the court acted well within

its gatekeeper’s discretion by excluding Anson from testifying as

an expert.

4. Lyons Was Properly Excluded

Lyons offered his opinion to quantify Olive’s damages, and

to prove that GNC intentionally continued using Olive’s image

after the release agreement expired. His calculation of Olive’s

actual damages directly hinged on Anson’s determination that

one to three percent of GNC’s 2012 sales was attributable to the

unauthorized use of Olive’s likeness. Lyons admitted he did not

conduct his own calculations “because they [Olive’s counsel]

retained an expert that had a long track record and is well-known

21

in branding and licensing and valuation of intellectual property

rights. [¶] And I met with him and reviewed the work that he

did, so I would feel comfortable with it.”

GNC moved to exclude Lyons, arguing that his calculations

hinged on Anson’s invalid approach and that his assessment

about indicia of fraud on the part of GNC was not the proper

subject of expert testimony. The court granted the motion. It

found that Lyons’ opinion regarding Olive’s damages was directly

tethered to Anson’s calculations and was likewise inadmissible.

Further, the issue of whether GNC intentionally used Olive’s

image without authorization was beyond the scope of expert

testimony.

Olive contends “[t]he trial court’s lack of an independent

review of Lyons’ testimony again reveals that it did not conduct a

causal nexus test.[9] Because the trial court did not analyze the

experts’ testimony in this fashion, and relied on a

misinterpretation of section 3344, its rulings should be

reversed.”10 We disagree.

9 Olive repeatedly asserts that a claim under section 3344

requires a “causal nexus” between the defendant’s unauthorized

use of the plaintiff’s image and the defendant’s gross revenue.

The statute does not use this phrase and, as discussed ante, the

federal authority relied upon by Olive to support this contention

is inapplicable to this case.

10 Olive generally challenges the exclusion of Lyons but he

does not specifically address Lyons’ proffered expertise as to

whether GNC’s unauthorized use of Olive’s likeness was

intentional or malicious. It is his burden to assign a distinct

claim of error. (Salas v. Department of Transportation (2011) 198

22

In his deposition, Lyons testified Anson was exclusively

tasked with calculating the portion of GNC’s revenues

attributable to the unauthorized use of Olive’s likeness. Lyons

was unaware how Anson selected the comparable sample, and he

did not independently evaluate whether the sample was

appropriate. In particular, Lyons did not ask Anson how he ruled

out other persons in his sample, nor did he ask about the

parameters for his sample database. Notwithstanding these gaps

in information, Lyons was “very comfortable” with the manner in

which Anson conducted his analysis.

Anson planned to provide Lyons an attribution percentage

for him to perform a damages calculation. Lyons’s evidence that

GNC’s unauthorized use of Olive’s likeness increased its sales

was “that their sales went up significantly more, as a percentage,

than they did in the prior year, . . .” Lyons offered no compelling

evidence supporting his conclusion that Olive’s likeness directly

caused an increase in GNC’s sales.

Expert opinion testimony may be based upon information

furnished to the expert by others so long as the information is of

a type reasonably relied upon by professionals in the relevant

field. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516,

1524; Pacific Gas & Electric Co. v. Zuckerman (1987) 189

Cal.App.3d 1113, 1135.) However, when the expert’s opinion is

not based on his own perception or knowledge, but depends

instead upon information furnished by others, it is of little value

unless the source is reliable. (See Korsak, at p. 1524, citing 1

Witkin, Cal. Evid. (3d ed. 1986) § 477, p. 448.) Thus, expert

opinion testimony may not be based upon information furnished

Cal.App.4th 1058, 1074.) We therefore deem the issue forfeited.

(Ibid.)

23

by others that is speculative, conjectural or otherwise unreliable.

(Ibid; Lockheed Litigation Cases (2004) 115 Cal.App.4th 558,

564.)

As discussed, Lyons’s opinion hinged on Anson’s

speculative assumptions with no independent evidentiary value.

His opinions were unreliable on this basis. (See Cooper, supra,

239 Cal.App.4th at p. 577 [expert opinion based on speculative

factors has no evidentiary value and may be excluded]; see also

Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at pp. 1524,

1527 [excluding expert opinion where basis of opinion is

unreliable hearsay].) The court properly excluded Lyons’

sspeculative opinions. (See Sargon, supra, 55 Cal.4th at p. 772

[“goal of trial court gatekeeping is simply to exclude ‘clearly

invalid and unreliable’ expert opinion”]).11

C. Prevailing Party Attorney Fees and Costs

Olive contends the trial court abused its discretion by

denying his motion for prevailing party attorney fees. GNC

contends that given the mixed results at trial, the court correctly

concluded there was no prevailing party, or that, alternatively,

this court should deem GNC to be the prevailing party. Although

we originally agreed with Olive and ordered that the matter be

remanded to conduct a hearing to determine an appropriate costs

and attorney fees award, we subsequently granted GNC’s petition

11 Olive again cites the two jury questions about how to

apportion GNC’s ill-gotten profit in support of his contention that

the court’s exclusion of Anson and Lyons was prejudicial. Having

found no error, we need not address this issue. (Ante, fn. 5.)

24

for rehearing on this issue. After reviewing the matter once

more, we are now persuaded that the trial court was correct.

1. Proceedings Below

Olive’s complaint alleged misappropriation of his likeness

and sought restitution for GNC’s unjust enrichment. GNC

initially denied Olive’s allegations, but eventually admitted

liability for the unauthorized use of his likeness. Therefore, the

only issue to be resolved at trial was Olive’s damages, if any.

In his trial brief, Olive sought damages as follows: actual

damages of $1.5 million for the licensing fee to use his likeness in

2012-2013; past and future emotional distress damages of $2

million; restitution for GNC’s profits based on the unlicensed use

of his likeness in a range that went from approximately $54

million to as high as $175.9 million; and punitive damages of at

least five times the amount of the jury’s damage award. During

argument, Olive asked the jury to award restitution in amounts

ranging from $11.7 to $35.2 million. GNC impliedly

recommended that Olive was entitled to a licensing fee of only

$4,800, but urged the jury to award nothing in the way of

emotional distress, restitution, or punitive damages. The jury

awarded Olive $213,000 for the licensing fee and $910,000 for his

emotional distress, but did not award Olive either restitutionary

or punitive damages.

Both parties sought prevailing party attorney’ fees

pursuant to section 3344. The trial court concluded that neither

party prevailed because “the jury accepted neither party’s

recommendation but instead awarded a middling sum amounting

to a tie.” In reaching this decision the court noted that both

parties were visibly dismayed by the jury verdict—Olive thought

25

it was too low and GNC thought it was too high. The court

emphasized counsel’s facial reactions, stating “[t]his . . . mutually

transparent display was unprecedented in the court’s

experience.”

The court continued: “Draw a line between two endpoints.

The left endpoint is GNC’s jury recommendation: $4800. The

right endpoint is Olive’s recommendation: $23.5 million. (His

total recommendation actually was higher, but we simplify for

clarity.) Now mark million-dollar intervals on this line, from left

to right. This line charts the range of the quantitative dispute.

Finally, place a fulcrum under this line at the $1.1 million point.

That was the jury verdict. If this line were a tangible yardstick

and the verdict an actual fulcrum, the yardstick would tilt

sharply in GNC’s favor. [¶] Think of a teeter totter. Olive is in

one seat, GNC is in the other. The pivot point is the jury verdict.

The seesaw’s pivot is far closer to GNC than to Olive. [¶]

According to the goal Olive set for himself, one cannot say Olive

prevailed. He lost, which is why he and his team thought he lost.

[¶] . . . [¶] GNC also thought it lost, and for good reason. In

addition to an actual damage award that vastly exceeded GNC’s

assessment, the jury awarded Olive $910,000 in emotional

distress damages. The GNC lawyers were plainly shocked by this

pain and suffering sum.”

The trial court therefore concluded that, given the

“practical realities” of the case, the trial ended in a draw and

there was no prevailing party.

26

2. Applicable Law

Generally speaking, parties to litigation must bear their

own costs, including attorney fees. (Westamerica Bank v. MBG

Industries, Inc. (2007) 158 Cal.App.4th 109, 125–126.) However,

section 3344 mandates an award of attorney fees for “[t]he

prevailing party in any action under this section.” (§ 3344, subd.

(a); Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 62.)

The statute does not define the phrase “prevailing party.”

“‘In the absence of legislative direction in the attorney fees

statute, the courts have concluded that a rigid definition of

prevailing party should not be used. [Citation.] Rather,

prevailing party status should be determined by the trial court

based on an evaluation of whether a party prevailed “‘on a

practical level,’” and the trial court’s decision should be affirmed

on appeal absent an abuse of discretion.’ [Citation.] ‘Among the

factors the trial court must consider in determining whether a

party prevailed is the extent to which each party has realized its

litigation objectives. [Citations.]’ [Citation.]” (Sharif v. Mehusa

Inc. (2015) 241 Cal.App.4th 185, 192 (Sharif) [when there are two

fee shifting statutes in separate causes of action, there can be

different prevailing parties].) That standard applies to actions

under section 3344 (Gilbert v. National Enquirer, Inc. (1997)

55 Cal.App.4th 1273, 1277–1278), and it is the standard the trial

court applied.

Most cases applying this standard to statutory attorney fee

provisions have done so in the context of voluntary dismissals.

(Donner Management Co. v. Schaffer (2006) 142 Cal.App.4th

1296, 1310–1311 (Donner Management) [shareholder derivative

suit against corporate officer dismissed without prejudice; trial

court properly found defendant was prevailing party under

27

statutory fee provision because plaintiff’s dismissal was

compelled by corporate decision that maintaining action was not

in corporation’s best interests]; Castro v. Superior Court (2004)

116 Cal.App.4th 1010, 1022–1024 (Castro) [where lis pendens is

voluntarily removed pending hearing on motion to expunge, the

party who brought the motion may be entitled to recover

statutory attorney fees based on practical considerations that

motivated removal of the lien, including the merits of the

expungement motion]; Galan v. Wolfriver Holding Corp. (2000)

80 Cal.App.4th 1124, 1129–1130 [plaintiffs brought action

against landlord for substandard housing and parties settled; no

abuse of discretion by trial court in determining there was no

prevailing party where the settlement did not exonerate the

landlord and plaintiffs implicitly determined it was not worth

pursuing the matter]; Gilbert, supra, 55 Cal.App.4th 1273, 1277–

1278 [actress voluntarily dismissed section 3344 action without

prejudice; trial court did not abuse its discretion by finding no

prevailing party because so little discovery had been conducted it

was impossible to determine which party prevailed at a practical

level].)

3. Hsu v. Abbara

We have not found, and the parties have not cited, a

published decision applying the “practical level” test to a

statutory cause of action where the term “prevailing party” is not

defined and a plaintiff recovered some amount of damages at

trial. Both parties suggest that guidance can be found in the

somewhat analogous context of contractual attorney fee awards

under Civil Code section 1717, which allows a trial court to

28

determine that neither party has prevailed on a contract cause of

action. (Civ. Code, § 1717, subd. (b)(2).)

The seminal decision in this area is Hsu v. Abbara (1995)

9 Cal.4th 863 (Hsu). In Hsu, the would-be buyers of a house sued

the sellers for breach of contract, claiming that the sellers

reneged after an exchange of offers and counteroffers had

resulted in an agreement to sell. The trial court found for the

defendant sellers after determining that the buyers’ new offer,

made after their purported acceptance, extinguished the

previously accepted counteroffer. The trial court, without

explanation, declined to award the sellers their attorney fees

pursuant to a contractual fee provision, and the Court of Appeal

affirmed.

The Hsu court reversed, holding that the sellers were the

prevailing parties as a matter of law because they achieved an

unqualified win. (Hsu, supra, 9 Cal.4th at pp. 876–877.) Before

reaching that conclusion, however, the Hsu court considered the

possibility that the trial court might have properly found that

neither party had prevailed, and established ground rules for

making such a determination.

Citing earlier Court of Appeal decisions, Hsu noted “that

the results of litigation may be so equivocal as to permit or even

require that no party be found to have prevailed for purposes of

attorney fees under [Civil Code] section 1717.” (Hsu, supra,

9 Cal.4th at p. 874.)

“As one Court of Appeal has explained, ‘[t]ypically, a

determination of no prevailing party results when both parties

seek relief, but neither prevails, or when the ostensibly prevailing

party receives only a part of the relief sought.’ [Citation.] By

contrast, when the results of the litigation on the contract claim

29

are not mixed—that is when the decision on the litigated contract

claims is purely good news for one party and bad news for the

other—the Courts of Appeal have recognized that a trial court

has no discretion to deny attorney fees to the successful litigant.

Thus, when a defendant defeats recovery by the plaintiff on the

only contract claim in the action, the defendant is the party

prevailing on the contract under [Civil Code] section 1717 as a

matter of law. [Citations.] Similarly, a plaintiff who obtains all

relief requested on the only contract claim in the action must be

regarded as the party prevailing on the contract for purposes of

attorney fees under [Civil Code] section 1717.” (Hsu, supra,

9 Cal.4th at pp. 875–876.)

As a result, “parties whose litigation success is not fairly

disputable [may] claim attorney fees as a matter of right, while

reserving for the trial court a measure of discretion to find no

prevailing party when the results of the litigation are mixed. [¶]

Accordingly, we hold that in deciding whether there is a ‘party

prevailing on the contract,’ the trial court is to compare the relief

awarded on the contract claim or claims with the parties’

demands on those same claims and their litigation objectives as

disclosed by the pleadings, trial briefs, opening statements, and

similar sources. The prevailing party determination is to be

made only by ‘a comparison of the extent to which each party

ha[s] succeeded and failed to succeed in its contentions.’

[Citation.]” (Hsu, supra, 9 Cal.4th at p. 876.) Finally, when

determining litigation success, the courts “should respect

substance rather than form.” (Id. at p. 877.)

30

4. The Hsu Rule Applies Here

To the extent we interpret the attorney fee provision

contained in section 3344 apart from any factual issues, we

exercise independent review. The trial court’s factual

determination concerning prevailing party status in accord with

that provision is reviewed for abuse of discretion. (Sharif, supra,

241 Cal.App.4th at p. 191.)

Hsu’s test for determining whether neither party prevailed

at trial came in the context of Civil Code section 1717, which

expressly allows for such a determination in contract-based

claims. Section 3344, however, contains no such provision.

Therefore, before determining whether Hsu applies here, we

must first determine whether the trial court was free to find in

the first instance that there was no prevailing party.

As noted earlier, because section 3344 does not define

“prevailing party,” the evaluation of whether a party prevailed

turns on whether the party prevailed on a practical level. This

requires the trial court to consider, among other things, the

extent to which each party realized its litigation objectives.

(Sharif, supra, 241 Cal.App.4th at p. 192.)

As part of this determination, we believe it is possible for a

trial court to conclude that neither party prevailed because

neither party realized its litigation objectives. This was explicit

in Galan, supra, 80 Cal.App.4th at page 1128, which held in

connection with a statutory fee provision that did not define

“prevailing party” that it was within the trial court’s discretion to

determine “which party, if either, prevailed . . . .” (Italics added.)

It was also a necessary, if unanalyzed, corollary to the holding in

Gilbert, supra, 55 Cal.App.4th at pages 1277–1278, that the

defendant in a section 3344 action in whose favor a dismissal was

31

entered was not entitled to recover its attorney fees because it

was not possible to determine “whether either side had prevailed

on a practical level.”

We conclude that Hsu provides a workable approach for

determining whether neither party prevailed. As Sharif noted,

the test in statutory fee provisions that do not define “prevailing

party” is to determine whether a party prevailed on a practical

level by considering, among other things, the extent to which

each party realized its litigation objectives. (Sharif, supra, 241

Cal.App.4th at p. 192.) The Hsu test is substantially similar,

coming into play in so-called “mixed result” cases, where the

ostensibly prevailing party receives only part of the relief sought.

(Hsu, supra, 9 Cal.4th at p. 875.) In such cases, the trial court

compares the relief awarded with the parties’ demands, as

disclosed by the pleadings, trial briefs, opening statements, and

other sources. Based on that, the trial court determines whether

there has been a prevailing party by comparing the extent to

which each party succeeded or failed in its contentions. (Id. at

p. 876.)

5. The Trial Court Did Not Err By Finding

That There Was No Prevailing Party

It is undisputed that neither party obtained an unqualified

win. Olive initially sought $1.5 million in actual damages, $2

million for his emotional distress, restitution of GNC’s profits in a

range that exceeded $100 million, and five times the total of

those sums as punitive damages. Instead, he obtained $213,000

in actual damages, $910,000 for his emotional distress, and

nothing in terms of restitution or punitive damages. GNC

32

contended that Olive was entitled to nothing more than $4,800 in

actual damages, but ended up with an adverse verdict of more

than $1.1 million. Accordingly, the trial court was free to view

this as a mixed result and then exercise its discretion to

determine whether one party prevailed, or whether neither party

prevailed because neither achieved its practical litigation

objectives.

A court abuses its discretion if its ruling is so irrational or

arbitrary that no reasonable person could agree with it.

(Property California SCJLW One Corp. v. Leamy (2018) 25

Cal.App.5th 1155, 1162.) An abuse of discretion occurs if, in light

of the applicable law and the relevant circumstances, the court’s

decision exceeds the bounds of reason, resulting in a miscarriage

of justice. (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th

329, 378.) The trial court here engaged in a detailed analysis of

each party’s results, taking into account the reduced amount of

restitution damages sought by Olive in light of the trial court’s

evidentiary rulings excluding his expert witnesses on that

topic.12 Even though the jury awarded Olive more than $1.1

million, the trial court concluded that the verdict still

represented a loss for Olive based on his own trial objectives. We

do not believe this was an abuse of discretion.

The court in Marina Pacifica Homeowners Assn. v.

Southern California Financial Corp. (2018) 20 Cal.App.5th 191

12 Olive disputes that he ever sought restitution damages of

more than $175 million, claiming that the figure represented

nothing more than the high range of GNC’s possible profits from

its unauthorized use of his likeness. As just noted, however, the

trial court relied on a far lower amount when determining each

party’s litigation success, as do we.

33

(Marina Pacifica) considered an analogous mixed-results

scenario. We find its reasoning instructive.

The plaintiff in Marina Pacifica was a condominium

homeowners association and the defendant was the assignee of

the project developer. The dispute centered on the assignee’s

right to collect certain ongoing payments as an assignment fee

pursuant to each unit owner’s purchase agreement. Following

years-long litigation, the developer’s assignee was awarded $39

million. However, the trial court determined that neither party

had prevailed because the assignee had sought damages of $97

million. The Marina Pacifica court affirmed, holding that under

the principles of Hsu, supra, 9 Cal.4th 863, the results were

sufficiently mixed to justify the trial court’s findings. (Marina

Pacifica, supra, 20 Cal.App.5th at p. 207.)

In short, a multi-million dollar award somewhat more than

40 percent of the amount sought was sufficiently “mixed” that the

trial court could reasonably conclude neither party had prevailed.

The facts here are even more compelling, where, when Olive’s

punitive damage request is factored in, he recovered less than

one percent of his litigation objectives.13

Olive relies primarily on three decisions to support his

contention that the trial court abused its discretion when it failed

to recognize that he was the prevailing party: de la Cuesta v.

13 We base this on the $1.1 million Olive was awarded, plus

the mid-point $20 million in restitution damages he eventually

sought at trial, added to the multiplier of five he requested for

punitive damages. At Olive’s bottom-range restitution demand of

approximately $11 million, the verdict is still less than two

percent of what he sought at trial. And even if we factored out

his punitive damages request, the verdict is still only five percent

of the verdict plus his mid-point restitution demand.

34

Benham (2011) 193 Cal.App.4th 1287 (de la Cuesta); Silver Creek,

LLC v. Blackrock Realty Advisors (2009) 173 Cal.App.4th 1533

(Silver Creek); and Ajaxo v. E*Trade Group, Inc. (2005) 135

Cal.App.4th 21 (Ajaxo).14 None is applicable.

The de la Cuesta court held that even in a mixed results

case it might be an abuse of discretion to determine there was no

prevailing party if the results were lopsided in one party’s favor.

(de la Cuesta, supra, 193 Cal.App.4th at p. 1295.) The plaintiff in

that unlawful detainer action was a landlord who sought

$103,000 in back rent, while the tenant claimed she owed

nothing. The tenant vacated the premises the day before trial

and the plaintiff was awarded $70,000. The trial court found

there was no prevailing party, but the Court of Appeal reversed,

holding that the trial court had abused its discretion because the

results were so lopsided in the plaintiff’s favor. (Id. at pp. 1290,

1296.) By contrast, given the disparity between what Olive

sought and what he achieved at trial, we cannot state that the

results here were lopsided in his favor.

The same is true of Silver Creek, supra 173 Cal.App.4th

1533 at pages 1540–1541, where the plaintiff-seller of real

property obtained a judgment declaring that it had properly

terminated the sales agreement for property worth more than

$29 million, while the defendant obtained the return of its $1.13

million deposit. The trial court’s determination that neither

party prevailed was an abuse of discretion because the property

issue was most important to the parties, meaning the plaintiff

clearly obtained the greater relief. (See Marina Pacifica, supra,

20 Cal.App.5th at pp. 206–207.)

14 We relied on these as well in our original decision, but

have reevaluated them in light of GNC’s rehearing petition.

35

Finally, in Ajaxo, supra, 135 Cal.App.4th 21, 59, the Court

of Appeal rejected defendant’s contention that the plaintiff could

not be the prevailing party on its breach of contract cause of

action because the $1 million damage award was far less than

what it had requested. Even though the award was less than the

amount sought, the plaintiff was still the prevailing party

because it received a simple, unqualified win on its breach of

contract claim. (See Marina Pacifica, supra, 20 Cal.App.5th at

p. 205.) As already discussed, Olive’s “win” was not unqualified.

In short, given that the mixed results in this case did not

amount to a lopsided verdict in Olive’s favor, the trial court did

not abuse its discretion in determining that neither party

prevailed for purposes of awarding attorney fees under section

3344.15

15 We reject Olive’s contention that our holding undercuts

section 3344 by requiring either a complete victory, or that the

plaintiff in such an action must be awarded restitutionary

damages in order to be deemed the prevailing party. Instead, we

merely recognize that the trial court that presided over the

matter is in the best position to determine the degree to which

either party succeeded at trial, that each case must be evaluated

individually, and that, under the relevant circumstances and the

applicable law, the trial court here did not abuse its discretion in

concluding that neither party had prevailed.

36

DISPOSITION

The judgment and order denying both parties attorney fees

are affirmed. Each party shall bear its own appellate costs.

CERTIFIED FOR PUBLICATION

MICON, J.*

We concur:

MANELLA, P. J. WILLHITE, J.

*Judge of the Los Angeles County Superior Court assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.